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[3 brief articles on Corporate Free Speech / US Political Campaign Finance law changes— count as 1 reading for RDP’s and Rdg. Notes sheets. ]

Corporate free-speech ruling speaks of shift in Supreme Court

February 09, 2010|By David G. Savage

Los Angeles Times



Reporting from Washington — The Supreme Court's ruling last month giving corporations the right to spend freely on elections reflects a profound shift among the conservative justices on the importance of the 1st Amendment and the nature of corporations.

In the 1970s, Justices William H. Rehnquist and Byron R. White said business corporations were "creatures of the law," capable of amassing wealth but due none of the rights of voters.

By contrast, the court's current majority described a corporation as an "association of citizens" that deserves the same free-speech rights as an individual. Because speech and debate are good for democracy, they said, the public should welcome more corporate-funded campaign ads.

"To exclude or impede corporate speech is to muzzle the principal agents of the modern economy," Justice Antonin Scalia said. "We should celebrate rather than condemn the addition of this speech to the public debate."

The change is a product of the Reagan era of the 1980s, when the administration sought to free business from government regulation. All five justices who made up the majority in last month's case, Citizens United vs. Federal Election Commission, were either appointed by Reagan or worked as young lawyers in the Reagan administration.

"This is a different brand of conservatism," said Trevor Potter, an election law expert who served as counsel to Arizona Republican Sen. John McCain's presidential campaign. "The justices are shaped by society. Those that came after the Great Depression saw government regulation of corporations as natural and necessary. This younger generation sees it very differently. They have a real distrust of government."

To the earlier generation of justices, corporations were both powerful and potentially dangerous if unchecked by government.

But in the Jan. 21 opinion, Justice Anthony M. Kennedy portrayed corporations as victims of discrimination.

"Premised on mistrust of governmental power, the 1st Amendment stands against attempts to disfavor certain subjects or viewpoints," Kennedy said. "Yet certain disfavored associations of citizens -- those that have taken the corporate form -- are penalized for engaging in political speech."

The victory for business corporations did not arise from a case involving a business corporation.

Citizens United, a small nonprofit group of conservative activists, had produced a 90-minute DVD called "Hillary: The Movie," which they hoped would derail the presidential candidacy of Hillary Rodham Clinton in 2008.

Because the group had received some corporate money, the high court used its case to rule broadly on the free-speech protection for all corporations.

In 1907, Congress began prohibiting corporations from contributing money to candidates and their campaigns. And in 1947, the law began barring corporations and unions from spending money on their own to elect or defeat candidates for Congress and the White House.

The movement to lift those restrictions dates back to the 1970s… [Dunn cut some for space reasons.]

In the 1990s, Justices Kennedy, Scalia and Clarence Thomas said they would strike down these laws. When President George W. Bush's two appointees -- Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. -- joined with them, they had a majority.

Fred Wertheimer, a longtime champion of campaign finance laws, faults the five-justice majority for judicial activism in its January ruling. "They threw out 100 years of national policy, and they did it by inventing a brand-new right for corporations to participate in politics," he said.

But Allison Hayward, a George Mason University law professor and critic of the campaign funding laws, said the court's decision stood up for the very old right of free speech in politics.

"This was a moment for them to say, 'Enough is enough,' " she said. "There's been a constitutional cloud over the expenditure bans for a very long time."

The court's support for corporate speech rights now casts doubt on the money limits placed on political parties.

The McCain-Feingold Act in 2002 restricted how much corporations, unions or wealthy persons could give to parties, and it put new limits on campaign ads that were funded by corporate or union money.

The January ruling struck down the second part of the law. The Republican National Committee and the California Republican Party also have sued on free-speech grounds to knock down the limits on money given to parties. That suit is still pending.

Lobbyists Get Potent Weapon in Campaign Finance Ruling

by David D. Kirkpatrick

Published on Friday, January 22, 2010 by The New York Times



WASHINGTON — The Supreme Court has handed a new weapon to lobbyists. If you vote wrong, a lobbyist can now tell any elected official that my company, labor union or interest group will spend unlimited sums explicitly advertising against your re-election…[Dunn cut some here for space reasons]

It is expected to unleash a torrent of attack advertisements from outside groups aiming to sway voters, without any candidate having to take the criticism for dirty campaigning. The biggest beneficiaries might be well-placed incumbents whose favor companies and interests groups are eager to court. It could also have a big impact on state and local governments, where a few million dollars can have more influence on elections… …[Dunn cut some here for space reasons]

Thursday’s decision, in Citizens United vs. the Federal Election Commission, “is going to flip the existing campaign order on its head,” said Benjamin L. Ginsberg, a Republican campaign lawyer at the law-and-lobbying firm Patton Boggs who has represented both candidates and outside groups, including Swift Boat Veterans for Truth, a group formed to oppose Senator John Kerry’s 2004 presidential campaign.

“It will put on steroids the trend that outside groups are increasingly dominating campaigns,” Mr. Ginsberg said. “Candidates lose control of their message. Some of these guys lose control of their whole personalities.”

“Parties will sort of shrink in the relative importance of things,” he added, “and outside groups will take over more of the functions — advertising support, get out the vote — that parties do now.”

In practice, major publicly held corporations like Microsoft or General Electric are unlikely to spend large sums money on campaign commercials, for fear of alienating investors, customers and other public officials.

Instead, wealthy individuals and companies might contribute to trade associations, groups like the Chamber of Commerce or the National Rifle Association, or other third parties that could run commercials.

Previously, Mr. Noble of Skadden Arps said, his firm had advised companies to be wary about giving money to groups that might run so-called advocacy commercials, because such activity could trigger disclosure requirements that would identify the corporate financers.

“It could be traced back to you,” he said. “That is no longer a concern.”

Comic’s PAC Is More Than a Gag

By DAVID CARR

New York Times



Published: August 21, 2011

Let’s start with a spot political quiz. Which of the following are legitimate political action committees known as Super PACs, and which is fake?

A) Citizens for a Working America

B) Make Us Great Again

C) Americans for a Better Tomorrow, Tomorrow

D) We Love USA

If you guessed that C was the fake, you’d be wrong. It was a trick question: these are all legitimate Super PACs. “Americans for a Better Tomorrow, Tomorrow” was created by the comedian Stephen Colbert, which makes it funnier.

But not by much. Americans for a Better Tomorrow, Tomorrow may be a running gag on “The Colbert Report” on Comedy Central, but it is spending money as it sees fit, with little in the way of disclosure, just like its noncomedic brethren.

Comedians, including Mr. Colbert in the last election, have undertaken faux candidacies. But his Super PAC riff is a real-world exercise, engaging in a kind of modeling by just doing what Super PACs do.

And he has come under some real-world criticism for inserting himself in the political process so directly. Mr. Colbert, who lampoons conservative talk show hosts by pretending to be one, is now making fun of Super PACs by actually forming one. His committee spent money on advertising in Iowa during the run-up to the Ames straw poll, which took place Aug. 13. It’s as though Jonathan Swift took his satirical suggestion about Irish babies one step further and actually cooked one.

At first blush, it seemed to be one more skirmish in the culture wars: East Coast funnyman uses his fan base to pay for satirical commercials, implicitly demeaning the Ames straw poll in specific, and Iowa in general. Mr. Colbert suggested that all the soft-money ads with their soft-focus shots of rural tableaus were exposing the children of Iowa to “cornography.” But the folkways being criticized belonged to the Beltway, not the Corn Belt.

“I am much taken by this and can’t think of any real parallel in history,” said Stephen Hess of the Brookings Institution. “Yes, comedians have always told jokes about elections, but this is quite different. This is a funny person being very serious, actually talking about process. What comedian talks about process?”

Mr. Colbert not only talks about process, he has become a part of it. The current law governing political action committees was laid down in a 2010 Supreme Court ruling, which lifted many restrictions on how corporations, unions and others could spend money on behalf of almost any cause.

In the 2010 Congressional races, Super PACs spent over $60 million, managing to get their voices heard through what Mr. Colbert has described as a “megaphone of cash.”

In May, Mr. Colbert applied for status as a Super PAC with the Federal Elections Commission and was approved in June. “This is 100 percent legal and at least 10 percent ethical,” he explained.

More than 165,000 fans of the show have signed up since he got approval, many of them sending along money to finance his evil plot to make fun of campaign finance abuse.

Just before the straw poll last week in Ames, Mr. Colbert’s committee paid for broadcast ads that criticized the spending on behalf of the Texas governor, Rick Perry, who had more than a six-pack of Super PACs raising money for him even before he declared his candidacy for the Republican nomination.

In one ad, ominous music played and a flurry of dollars moved across the screen as the announcer intoned: “A storm is gathering over Iowa, a money storm. Out-of-state groups like Grow PAC and Jobs for Iowa PAC are flooding the Iowa airwaves, telling you to vote Rick Perry at the Ames straw poll. They think they can buy your vote with their unlimited Super Pac money.”

The ad suggested that participants in the straw poll should write in the name “Richard Parry,” saying the rogue “a” “stands for America” and for “IowA.” Two television stations in Des Moines ran the ad, while a third, WOI-TV, refused, saying that it would confuse voters — as opposed to the normally straightforward political discourse that PAC’s generally engage in, I guess.

Mr. Colbert made fun of the station, then apologized, and now the two former antagonists agreed to try to get to the bottom of just how many people in the straw poll voted for “Rick Parry.”

The Colbert Super PAC may be a stunt, but it has the imprimatur of the Federal Elections Commission: “Mr. Colbert may establish and operate the committee. The committee may solicit and accept unlimited contributions from individuals, political committees, corporations, and labor organizations,” its ruling in June read. Just in case people didn’t get the joke about the razor-thin line between parody and politics, Salvatore Purpura, the treasurer of Mr. Colbert’s Super PAC, quit last week to take a job — as treasurer of Mr. Perry’s campaign.

(It should surprise no one that Viacom, which owns Comedy Central, which plays host to “The Colbert Report,” is hardly on the sidelines in elections. In the 2010 elections, the company’s Super PAC spent $236,200 on both Democrats and Republicans Congressional candidates, spreading its bets while spreading the cash.)

While most of the rest of the news media continue to cover the coming election with long-running tropes — whose horse is ahead and who has the most loot? — Mr. Colbert has taken the equivalent of a political homework assignment and sprinkled a little silly sauce on top, and people seem happy to dig in.

“He is taking on a serious subject that many Americans find deadly dull and is educating the broader public on why it matters and what is at stake,” said Sheila Krumholz, executive director of the Center for Responsive Politics. Still, she adds, “it’s all fun and games until somebody gets hurt, like a specific campaign or the electoral system.”

That part is worth thinking about. If you substitute political provocateur for wisecracking television host, a fake Super PAC with real money may not seem so charming. Every year, earnest news organizations like the one I work for set out to do serious work that pulls back the blankets on how money warps and distorts the political process.

“There is a hall-of-mirrors quality to what he is doing that is hilarious and very effective,” said Mark Feldstein, a professor of journalism who is about to begin teaching at the University of Maryland.

“He is taking advantage of loopholes to set up an organization that is not a legitimate political action committee, if there is such a thing, to make the point that the current system is a form of legalized bribery. Try making that point as a member of the mainstream media and holding on to your objectivity.”

Maybe the whole system has become such a joke that only jokes will serve as a corrective. But if Mr. Colbert succeeds only in drawing out more humor, then the whole idea is a failure. Or to turn around what Ms. Krumholz said, it would be a shame if this is only fun and games.

One person who works on “The Colbert Report” who declined to be named, in keeping with the secrecy of Super PAC-hood, said that like the other soft-money operations with soft and cuddly names, Americans for a Better Tomorrow, Tomorrow is in it for the long haul, because, as he pointed out, “there wasn’t a lot of competition for this piece of real estate.” “Not even the actual news reporters want to cover campaign finance. We decided that we would just see how far we could go,” he said. “And it turns out that, like everyone else raising money in politics, we can pretty much do what we want.”

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